Court podcasts: deadlines for appealing court decisions and the procedure for their entry into effect
Olha Shkil, court press secretary: Dear listeners, you are greeted by the Sixth Administrative Court of Appeal. Today we are talking with the Yevhen Miezientsev deputy chief judge of our court, judge speaker.
Let’s start. Our topic has several points: the entry into effect of decisions of the first instance courts, the difference in this with the courts of appeal and cassation; time terms for appeal and restored terms; how the quarantine affected on the entry into effect and terms of appeal. And also to discuss whether the approach to determining the date when the decision of the first instance court enters into effect is understandable and clear and about judicial practice for the period of quarantine.
Olha Shkil: As I know the court decision isn’t executed immediately after its adoption. It must come into effect. Then under what conditions court decisions come into effect?
Yevhen Miezientsev, deputy chief judge of the court, judge speaker: I would like to greet all our listeners. Good afternoon! It's nice that you joined us and want to find out more about certain nuances of administrative legal proceedings. You should pay attention on the content of Article 255 of the Code of Administrative Proceedings of Ukraine (hereinafter - CAPU). The decision of the first instance court (hereinafter - DFIC) will come into effect if the term (which is setted by the procedural law to file appeals by party to a case, if such have not been filed) runs out.
In particular, if such an appeal was filed on the DFIC then such a decision, if, of course, it isn't canceled by the court of appeal, comes into effect after the appeal procedures are completed. That is, either the appeal review ends with the return of the appeal or the refusal to open or close the appeal proceedings, or the court of appeal takes a decision based on the results of the appeal review that leaves the DFIC unchanged.
Olha Shkil: That is, the participant in the case should not immediately celebrate after, for example, a victory in the court of first instance, but wait for the appeal deadline?
Yevhen Miezientsev: Now he still has to wait until the decision comes into effect, as far as the result of his work in the legal trial depends on the court of appeal in the event that an appeal will be received. If we turn to the next article of the CAPU 256th, the rulings of the first instance court come into effect in a slightly different way than the DFIC. In particular, as a general rule, a decision of a first instance court comes into effect immediately, after it has been proclaimed and signed by a judge.
Regarding an example of such a case, the general rule determines that a decision comes into effect immediately after its announcement. Now there are exceptions, which should be directly provided by the CAPU.
As an example of the such exceptions, I can cite part 8 of article 29 of the CAPU. This norm controls the transfer of a case to another court on judicial jurisdiction, and such transfer is carried out after the expiration of the period for appeal of the transfer order, or, for example, after the court of appeal upholds such a decision. Of course, this norm doesn’t determine that the decision on case transfering comes into effect only after the expiration of the appeal period. There is no direct norm. However, there is a determination that it is possible to proceed under such order only after the appeal deadline.
Please note that the norms of articles 325 and 359 of the CAPU determine that decisions made by courts of appeal/cassation instances come into force immediately after their adoption, that is, either from the date of adoption (decision), or from the date of announcement (court order). This is a certain specificity of the appeals/cassation instances: any decisions made by the courts of these instances come into effect immediate. Please note that the court orders made by the appeal/cassation courts beyond the court hearing, for example: in written proceedings or in the court hearing for the failure to appear of all participants in the case, come into effect from the moment they are signed by the judges (judge).
Olha Shkil: We just talked with you about the appeal and cassation. Let’s stop on the appeal, namely, what are the time limits for the appeal of the courts of first instance decisions and how are they calculated?
Yevhen Miezientsev: In order to deal with this problem, we must turn to article 295 of the CAPU. In particular, it is indicated that the DFIC can be appealed during 30 days. Attention should be paid to both lawyers and scientifics on the fact that the law determines exactly the period of 30 days for the possibility of appealing to the DFIC, not a month. Therefore, in any case, you should pay attention to how many days in the month in which the DFIC is accepted. If there are 31 days, then the decision that is adopted, for example, on the 1st or 5th of January, will come into effect on 4 February, not on the 5th. If, for example, in February 28 days, if the decision is made on February 12, then the deadline for appeal will be on March 14. The difference is because of the days counting.
The court orders which are adopted by the first instance court, are appealed during 15 days from the moment of their announcement. Another point that I would like to emphasize: the indicated period (30 and 15 days) begins to operate from the moment when the full text of the court decision was made, and in event of consideration the case in written proceedings - signing by all judges, including electronic digital signature.
The restoration of the term for appeal is, of course, possible if there are valid reasons for missing the deadline. A person who hasn’t participated in the process of announcement or writing a court decision has the right to restore the deadline for appeal during 30 and 15 days, respectively, from the date of proper serve of the DFIC decision.
Here, we must pay attention precisely to the questions of what is serve, how is it regulated and what does the legislator lay in understanding the procedure for serving the text of the court decision to the relevant participant in the trial. The Article 251 of the CAPU: the decision serve means the day of the decision text receipt against acknowledgement of receipt, for example, in the court’s registry, the day when court receives an electronic notification of the delivery of a court decision copy to the participant’s email, the day of posting an indicating mark on serving a decision, an indicating mark on the refusal to receive the specified decision, a note on the absence of the person at the address indicated by the court or at the official address of its registration.
For example, if a person is absent at the official registration address and there is a mail mark stating that it is not available at this address, the date of putting the indicated mark is considered the date of delivery the decision to the relevant participant. It should be noted that the person participating in legal trials mainly participates with a representative (lawyer).
Therefore, the delivery of a copy of a court decision to a lawyer or representative is the same that we give it to the person. That is, these two forms are identical in essence for calculating the entry into effect of a decision.
There are a number of disputes, the urgent, in which a special procedure and consideration, appeals/cassations (cases of administrative offenses, election disputes, etc.). In such categories, deadlines for making a decision and appeal were reduced to 10 and 2 days, respectively. A decision appeals in cases on disputes of peaceful assemblies shall be carried out no later than the next day after the announcement of such a court decision.
This issue is regulated by articles 268-289 of the CAPU. In addition, the overwhelming number of urgent cases provides announcement of the full text of the decision at the hearing, therefore, the appeal dates begin not from the moment the text of the court decision is handed over, but from the moment the court decision is made.
In particular, it is crucially important for such a category of cases as electoral, since in this category any term begins from the moment a decision is made.They are not transferred, cannot be prolonged. This is caused by certain category specifics, since they are very fleeting, like the election process itself, and judicial disputes should not exert influence on the election procedures in the form of a stop, a deferral, etc.
Olha Shkil: Back to the terms. You told about days, do you mean calendar days or working?
Yevhen Miezientsev: In any case, the calendar days are taken into account when determining the terms for the appeal. But as a general rule, if the last day of the relevant period falls on a non-working day or day off, then the last day of the period, for example, on appeal, is the next working day following it.
Olha Shkil: In your opinion, is an approach to determining the date of entry into effect of a court decision sufficiently clear and understandable?
Yevhen Miezientsev: Nowadays, we can easily notice that the legislator has defined reasonably clear criteria for a court decision to come into effect.
The terms are established by the procedural law and depend only on the norm established in the CAPU. In addition, the beginning of this period is clearly made.
It can be the moment of the full text of the decision is made and signed by the judges, in particular by electronic digital signature.
However, in practice, the issue of the entry into effect of a court decision is sometimes complicated because of the need to make sure that the party was handed a mail message with the text of the decision. An unconscientious party (and this is often observed) may specifically avoid receiving a copy of a court decision which is adopted not in her favor in order to preserve the possibility of restoring the term for appeal. And in such way, for some time, delay the process of entry of a court decision into effect.
For example, the decision was made on February 1, the deadline for appeal on March 2 or 3 has expired, but the party intentionally avoids receiving a copy of the decision. And subsequently, person submits an application stating that he did not receive a copy of the court decision on time, therefore asks to restore the time limit for appeal. The court resumes this period, and the court decision, it seems, has already entered into effect, but is not enforceable, because the appeal court in its proceedings has a statement on the review of the decision in the appeal procedure. Unfortunately it’s such a “procedural diversion”, the use of which is quite common.
Olha Shkil: If the time limit for appeal has been restored, how does this affect on a court decision that has been entered into effect?
Yevhen Miezientsev: The answer on this question can be found in two legal acts. Firstly, this is part 4 of article 300 of the CAPU. If the appeal is filed with a term passing established by the CAPU, the court, in the event the term for appeal is renewed, suspends the impugned decision in the court order on opening the appeal proceedings. It is a peremptory norm that does not give a definite opportunity to act in another way by the court of appeal and it is worth noting that the effect of the appealed decision is suspended.
Please note that there is also the Law of Ukraine "On Enforcement Proceedings." In particular, article 38. The state executor in such situations (restoration of the term for appeal and acceptance of the appeal for consideration) stops the enforcement proceedings. With the exception of executive documents admitted to immediate execution. Then the rule on suspension of enforcement proceedings does not apply to such documents.
But in some cases (Article 154 of the CAPU), the court order on securing the claim must be fulfilled even if it appeals against it, does not stop the action and the need for its implementation.
Olha Shkil: Please tell me which documents are considered to be those that should be executed immediately?
Yevhen Miezientsev: There is a certain list of court decisions that are allowed for immediate execution. Mostly, these are some decisions regarding labor relations (for example, the payment of wages for one month).
Olha Shkil: The legal regulation of many areas of activity, of course, has changed with the introduction of quarantine. Tell me, what is the situation with the entry into effect of decisions that were made before quarantine and during?
Yevhen Miezientsev: In particular, the Law of Ukraine 540th entered into effect on April 2, 2020 “On amendments to some legislative acts of Ukraine aimed at providing additional social and economic guarantees in connection with the spread of coronavirus disease COVID-19.”
Situation with this law itself is that this document established that during the quarantine, almost all procedural terms which are provided by the Code of Administration Proceedings of
Ukraine, except for term of acceptance for consideration of appeal, the decision of a question of acceptance for consideration in 5-day term proceed for the term of validity of the quarantine.
In particular, it is a change of subject, grounds of a claim, filing of evidence, appeal to the court, filing a response and objections to the applications, appeals and statements of a claim, leaving applications without action, returning the claim, even consideration of the case.
As well as the appeal / cassation appeal, consideration of the appeal / cassation appeal, review of the decision on the newly discovered circumstances, as I have already said, continue for the duration of such quarantine.
I would like to draw your attention to the fact that in my practice (I have been working as a judge since 2004) such measures, which would postpone almost all procedural terms of litigation, are an unprecedented situation.
There was no such thing, at least in my memory, this is the first case, and now we are in a very unique situation. I would like to pay attention that any terms established by the court in its decision, according to the norm of this Law №540-IX, cannot be less than the term of the quarantine.
In practice, this means for us that any decision of the court of first instance, which was made before the quarantine, the term of its appeal in the appellate court will expire (as well as its entry into force) after the end of the Cabinet of Ministers №211, quarantine.
Here is an example: if at the time of quarantine there are 5 days left to appeal on 12.03.2020, the specified decision of the court of first instance enters into force 5 days after the Cabinet of Ministers cancel the quarantine. And those decisions of the court of first instance, which were adopted during the quarantine, in any case will come into force only after the official termination of this quarantine, plus the appropriate period for appeal - 30 days, for decrees - 15 days, and shortened deadlines for court decisions on urgent cases.
What do we have in practice? In practice, we have the fact that any decisions of the court of first instance, which are made during the quarantine, do not take legal effect until the end of the quarantine.
Persons who, even in simple words, have won the case and are supposed to receive an executive document, do not have such an opportunity until the end of the quarantine, because their decisions do not take legal effect. Any procedural actions of the court: adjournment of the case, leaving without motion, requesting evidence, as I have already said, cannot be committed and appointed before the end of the quarantine.
Today, on May 20, 2020, it is May 22, 2020, unless, of course, such a term will not extended by the Cabinet of Ministers of Ukraine.
However, even now, just yesterday, there have been reports that the Ministry of Health will propose to the Cabinet of Ministers of Ukraine to extend the quarantine until at least June 22.
Although a formal decision on this issue has not yet been made. That is, today, May 20, the court may adjourn the case and appoint it, for example, on May 25, but if tomorrow it is decided that the quarantine is extended until June 22, the court will not have another option to adjourn the case, as after June 22. The serious difference, which I have already emphasized, with regard to the decisions made by the court of appeal / cassation, is that they come into force immediately, without delay, as before.
Olha Shkil: In the situation with quarantine, have the deadlines for appealing court decisions changed?
Yevhen Miezientsev: Now, we do not have any changes in this area, all the deadlines set by the Code of Administrative Proceedings for appeals remain unchanged. However, please note: they are all EXTENDED for the duration of quarantine. Thus, we have a situation where the longer the Cabinet of Ministers of Ukraine prolongs this term, the longer the terms will be. Currently, the extension of the time limits set for appeals is 2 months and 10 days, ie the difference between March 12, 2020 and May 22, 2020, as the current deadline for the current quarantine. This is a serious problem, I think, for those cases that are urgent. First of all, I am concerned that this year we will be local elections, obviously, there will be relevant allegations of violations of the rights and interests of participants in the election process. If the quarantine lasts until the start of the local election campaign, which should theoretically begin around August 2020, the consideration of cases in this category may be blocked. Because, for example, when initiating proceedings in an election dispute, which must be considered in 2 days, the court cannot set a deadline for filing a response to the statement of claim less than the expiration date of quarantine.
And if the term of the quarantine expires one month after the statement of claim was filed, the court cannot set another term. Therefore, I hope that by the time we enter this election campaign for local elections in Ukraine (they will be all-Ukrainian), the legislator will still make some changes in the legislation governing the timing of appeals against such categories of disputes - urgent.
Currently, we have information that the Verkhovna Rada of Ukraine adopted the draft of legislation №3383 in the first reading. It creates that the terms established by the Law №540-IX expire 20 days after the entry into force of the draft of legislation №3383.
Instead, the procedural terms of the Code of Administrative Proceedings will be extended and renewed not automatically, as under current law, but only at the request of a party of the trial or a person who did not participate in the case, but the court decided on his rights and responsibilities.
Honestly, the prospect of adopting such a draft of legislation is of some concern. First, we do not yet have a clear vision of the timing of the adoption of this draft of legislation and whether it will be adopted at all in the second reading and in general. However, in the presence of such text, which is provided by the draft of legislation №3383, there will be a wide field for manipulation of procedural terms by the parties to the process, as again in urgent cases the parties will be able to submit applications that will extend certain terms at the end of quarantine.
Olha Shkil: What is the practical application of these changes and is the case law the same?
Yevhen Miezientsev: From a practical point of view, I would like to note that since the beginning of the quarantine, ie since mid-March this year, there has been a certain decrease in the number of appeals coming to the Sixth Administrative Court of Appeal.
Leaving aside the analysis of why this is happening, we can assume that because the decisions of the first instance courts do not take legal effect within the established 30-day period, the participants in the process now have much more time for careful, high-quality preparation of appeal, and, of course, they enjoy this opportunity. But literally in May, we already see that the number of appeals that come to us for consideration, is about the same level as the quarantine, that is, people are prepared. In fact, the Cabinet of Ministers of Ukraine has now lifted restrictions on the work of lawyers, and lawyers work quite effectively in the interests of their clients. I would like to point out that from the case law of the Sixth Administrative Court of Appeal, the wording used by judges to set procedural deadlines for the parties (eg date of hearing, time to leave the application, time to demand evidence and something like that) is a little different. For example, the deadline for submitting evidence of payment of court fees after the end of the COVID-19 quarantine plus a certain number of days (5 or 10) after the end of quarantine; the date after the current quarantine date may be clearly defined.
Today it is May 22, it is possible to leave without consideration the case which has arrived to us and is now under consideration, for example, till May 28. However, if this term is extended, it will not be possible to do so before June 22. And the essence of all these terms established by the appellate court, despite the different wording, is essentially the same. It should not be earlier than the quarantine deadline at the moment.
Olha Shkil: Let's try to understand by the example. If the deadline for appeals expired on March 17 and April 2?
Yevhen Miezientsev: Look, if the deadline for the appeal of the decisions of the first instance courts expired on March 17, 2020, then there are no features or nuances for this situation. That is, it is applied on a general basis, the court decision comes into force on March 18. And such a decision is appealed after March 18, the applicant will need to renew the deadline for appeal on the general grounds that we discussed with you today.
Currently, if the decision of the court of first instance enters into force on April 2, 2020 (I will remind you, this is the first day when the law №540-IX came into force, which concerned that all procedural terms are extended for the duration of quarantine), the decision of the court of first instance will not enter into force during the entire period of this quarantine plus the corresponding period established by the law is 30 days, the decision - 15 days, urgent case - 10 days.
At this point, in theory, the entry into force of such a decision will take place only on June 21, 2020. I will repeat again if the quarantine is not extended tomorrow or the day after tomorrow by the Cabinet of Ministers of Ukraine, for example, until June 22. If it is extended until June 22, 30 days will be added to this date - and it will be July 22 (if June is 31 days, then July 21, 2020).
Olha Shkil: So, dear listeners, let's summarize: first, this podcast was the longest in our history :) let's speak about the serious:
• the procedure for entry into force of a court decision is different. It depends on the type of court decision (decision, ruling, resolution) and the instance. The decision of the court of first instance, as a general rule, is enforceable after it enters into force. And this happens after the expiration of the term for appeal or after the appellate review (of course, provided that the appellate court did not cancel it);
• court decisions of appellate and cassation instances take legal force without delay. The decision of the court of first instance can be appealed within 30 days (exactly 30 days, not a month), and the decision - within 15 days. These terms begin their course from the date of drawing up the full text of the court decision and its signing. The deadlines may be renewed if the appeal is filed within 15/30 days from the date of receipt of a copy of the decision. In case of renewal of the term for appeal, the court decision shall be suspended by the appellate court. There are exceptions: appealing the decision to secure the claim does not suspend its execution;
• in the calculation of the terms the quarantine period made its own changes. Now it is a unique situation when almost all procedural terms are extended for a special period - quarantine. In practice, all decisions of the courts of first instance taken during this period do not take effect until the end of quarantine. The time limits for taking procedural actions, such as filing a response to an appeal, set by the court, may not be less than the period of the quarantine;
• it is important that the court decisions will enter into force not immediately after the end of quarantine, the statutory period for appeal must also end;
• if the quarantine lasts until the start of local elections (approximately August 2020), a difficult situation may arise: the electoral process is short-lived, which requires resolving disputes in a short time. And during the quarantine period it is impossible to implement;
• changes to the procedure for calculating procedural time limits are generally applied in the same way. The wording used in court decisions is a bit different, but their essence is the same: the procedural term does not end while the quarantine is in force.
That's how rich our podcast was. Thank you for listening to us.Write to us on the Facebook page of the Sixth Administrative Court of Appeal what topics you want to discuss with the judges and court employees.
Sincerely with you.